Rogers v. Burr

• Decision Date: 05 October 1895
• Parties: ROGERS et al. v. BURR.
• Court: Georgia Supreme Court

25 S.E. 339

97 Ga. 10

ROGERS et al. v. BURR.

Supreme Court of Georgia

October 5, 1895

Syllabus by the Court.

1. Where one was induced to subscribe and pay for certain shares of stock in an incorporated company upon the faith of a written agreement signed by others, who thereby guarantied to such subscriber the payment of certain dividends upon the stock for a period of three years, and also therein agreed that if, at the expiration of said three years, the subscriber did not desire to carry the stock any longer, they would, upon 30 days' notice from him, pay to him the par value of the stock for which he had subscribed held: (1) That it was not incumbent on the subscriber to make his election as to keeping the stock, and to give the notice stipulated for in the contract immediately upon the expiration of the three years, but that he could do so within a reasonable time thereafter; (2) that the failure of the subscriber to give the guarantors notice that he had received no dividends upon the stock was not fatal to his right of action, under the contract, for the recovery of the same.

2. Under the construction of the contract as above announced the plaintiff's declaration, as amended, set forth a cause of action, and there was no error in overruling the demurrer to the same.

Error from superior court, Pike county; J. J. Hunt, Judge.

Action by M. E. Burr, administratrix of H. R. Chambers, deceased against J. J. Rogers and others. There was a judgment for plaintiff, and defendants bring error. Brought forward from the last term. Code, §§ 4271a--4271c. Affirmed.

The following is the official report:

Mrs. M E. Burr, administratrix of the estate of H. R. Chambers brought suit against J. J. Rogers and a number of others upon the following contract: "Georgia, Pike County. The undersigned parties, recognizing the importance to our town and community of a speedy and successful completion of the subscription to the capital stock of the Barnesville Manufacturing Company, and it being known to us that there is a balance of about five thousand dollars of said capital stock untaken and unsubscribed for, and having confidence in the success and profits of the enterprise, it is therefore agreed by us that for the purpose of inducing any one or more persons to subscribe for said untaken balance, or any part thereof, we will guaranty to them the payment of an annual dividend on the amount of their stock equal to eight per cent. per annum on the money paid into said company on said stock. This agreement and guaranty for the payment of eight per cent. as aforesaid is to run for the space of three years from the first day of December, 1889; and if, at the expiration of said three years, the stockholders or holders of said stock desire and wish not to carry the same any longer, we hereby further agree, with thirty days' notice from any or all of them, to pay each holder par value, or fifty dollars, for each share of stock held by them, their heirs or assigns. And, if said amount of par value is not paid promptly, we hereby consent that the agreement and guaranty to pay eight per cent. dividend, above set forth, shall continue of force until the same is fully paid up. Witness our hands and seals, this the 27th day of April, 1889." This was signed by the defendants, after which signatures appeared the following: "We, the subscribers, consent and agree to take the amounts of stock in the Barnesville Manufacturing Company opposite our names below, respectively, upon the terms and conditions set forth in the above agreement." This was signed by J. J. Rogers and 21 others, including, "R. J. Powell, Adm'r H. R. Chambers, 60 shares, $3,000." Plaintiff alleged: The defendants are indebted to her $3,000, principal, besides interest from April 27, 1889. After the expiration of three years from December 1, 1889, she demanded payment of both principal and interest, of the parties to the contract, and payment was refused. In pursuance of the proposition made by the defendants, as set out in the contract, R. J. Powell, former administrator of H. R. Chambers, deceased, agreed to take 60 shares of stock of the Barnesville Manufacturing Company, paying therefor $3,000, and did so take said stock on the representations and guaranty of all of defendants; and all of defendants had notice that he subscribed for the stock on said representations, and the manufacturing company received the $3,000, and issued the 60 shares to him, which fact was known to all of defendants, and they approved and indorsed the same. Plaintiff now has said stock, and has been ready to turn it over to defendants upon their paying the principal and interest due on the same, in accordance with the terms of the contract sued on, and has the stock now in court to tender to defendants whenever they comply with their contract; and she asks the court to decree a surrender and transfer of the 60 shares to defendants when they shall pay the amount due her. R. J. Powell,...